NAGESWARA AYYAR Vs. MLMRAMANATHAN CHETTIAR

JUDGEMENT

(1.) This is a Letters Patent appeal against an order of Curgenven, J. ordering a stay of further proceedings in the suit on terms The suit is a mortgage suit and a preliminary decree has been passed and an appeal against it preferred to this Court. Stay of further proceedings pending the hearing of the first appeal was asked for by the appellant and granted by the learned Judge on terms. Appellant is the judgment-debtor under the decree and he objects to the terms imposed by the learned Judge as being too onerous and presents this Letters Patent appeal on that ground.

(2.) A preliminary objection is taken by the respondent decree-holder that the appeal does not lie. We think the objection must be sustained. The interpretation of judgment in Clause 15 of the Letters Patent which is given by the learned late Chief Justice Sir Arnold White, in Tularam Row V/s. Alagappa Chetti [1910] 35 Mad. 1 has in this Presidency at least, been followed so consistently that it has become for all practical purposes settled law here and we can see no reason for departing from that interpretation. The test there given is, where the order is in the course of the suit or proceeding, does it in effect put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned; and if the order is in an independent proceeding which is ancillary to the suit, it should be in some proceeding taken with a view to rendering the judgment effective if obtained. The learned Chief Justice also dealt with orders and petitions for stay of execution and said that he would be prepared to hold that an appeal would lie from an order refusing a stay of execution. Now clearly none of these tests will apply to the present case. The suit itself has not yet come to an end. We are not prepared to accept the argument of the appellant that a mortgage suit has finally come to an end with the passing of a preliminary decree. That is contrary to the scheme of the present Civil Procedure Code. So far from the preliminary decree putting an end to the suit execution cannot begin until after the final decree is passed and the property cannot be put up for sale until then. The appellant's petition which was heard by the learned Judge was designed to stay a sale of the property and it can equally be put in after the passing of the final decree. The order under appeal itself is obviously not a final order putting an end to the proceedings; it merely adjourns the suit if the appellant complies with its terms, and, if he does not, the suit goes on.

(3.) The appellant is unable to quote any ruling in his favour. Cases in which an appeal has been allowed in execution matters are appeals against orders refusing to stay execution-see Sonachalam Pillai V/s. Kumaravelu Chettiar A.I.R. 1924 Mad. 597 and Govindaramanuja Pedda Jeeyan Garlavaru V/s. Krishnamacharlu A.I.R. 1927 Mad. 398, Pethaperumal Chettiar v. Chidambaram Chettiar A.I.R. 1927 Mad. 592. These are not in point. Here there is no refusal to stay execution. Execution has been stayed on terms, the appellant is dissatisfied only by the terms imposed. The order puts an end therefore neither to the suit nor to any request for stay of execution. We therefore hold that no appeal lies and dismiss the appeal with costs.